Unpublished Disposition, 841 F.2d 1129 (9th Cir. 1982)

MEMORANDUM^* 

Karthauser appeals the dismissal of his claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680 (1982). He contends the district court erred in concluding that he had failed to file an administrative claim within two years of the discovery of his injury as required by 28 U.S.C. § 2401(b) (1982). We do not reach that issue. We vacate and dismiss for lack of jurisdiction.

DISCUSSION

An FTCA claimant may not commence a court action until the agency has either (1) made a final denial, or (2) failed to act within a six-month period. 28 U.S.C. § 2675(a); Caton v. United States, 495 F.2d 635, 638 (9th Cir. 1974). Premature filing deprives the court of jurisdiction. Caton, 495 F.2d at 638. In Caton, the claimant filed before the agency made a final denial and two months before the end of the six-month period. Id. We found that we lacked jurisdiction to consider the claim. Id. at 639.

Here, Karthauser filed before the agency made a final denial and two days before the end of the six month period. He filed a claim with the Public Health Services Hospital on July 8, 1981, and filed his lawsuit on January 6, 1982. We conclude that Caton controls. We cannot distinguish this case from Caton merely on the basis of the difference between two months and two days.

Karthauser nevertheless argues that Kubrick v. United States, 581 F.2d 1092 (3d Cir. 1978), rev'd on other grounds, 444 U.S. 111 (1979), requires a different result. In Kubrick, the Third Circuit held that the jurisdictional defect of early filing was considered cured when the claim was denied prior to any substantial progress in the litigation. Id. at 1098. The Eighth Circuit has adopted Kubrick. See Celestine v. Veterans Admin. Hosp., 746 F.2d 1360, 1363 (8th Cir. 1984). But cf., Gregory v. Mitchell, 634 F.2d 199, 204 (5th Cir. 1981) (court had no jurisdiction where claim was filed prematurely even though six months had passed).

We decline to follow Kubrick. We are bound by Caton's authority.¹  Moreover, while Kubrick promotes economy, " [i]t also ... arguably constitutes a judicial abrogation of the limitation on sovereign immunity contained in the statute." Porter v. United States, 619 F. Supp. 137, 141 (S.D. Ohio 1985). The FTCA represents a waiver of sovereign immunity. Its provisions are to be strictly construed. See Bell Helicopter v. United States, 833 F.2d 1375, 1377 (9th Cir. 1987); see also Campbell v. United States, 835 F.2d 193, 195 (9th Cir. 1987) ("Waivers of immunity are strictly construed in favor of the government"). The plain language of the statute controls: "An action shall not be instituted" until the claim has been filed and six months have passed. 28 U.S.C. § 2675(a) (emphasis added). Congress has drawn a bright line which we should not blur.

Dismissal may force Karthauser to perform a mere formality. We assume arguendo that he may be able to refile his complaint. See Anderson v. United States, 803 F.2d 1520, 1522 (9th Cir. 1986) ("Six months after the submission of the administrative claim, the claimant may either deem it denied and file suit in district court at any time prior to final agency action or the claimant may await final agency action and file suit within six months thereafter."). But under the FTCA and this court's case law, we are bound to dismiss. The result we reach is harsh, but harshness is in the nature of jurisdictional prerequisites and statutes of limitation. The "very purpose" of such requirements is to "often make it impossible to enforce what were otherwise perfectly valid claims." Kubrick, 444 U.S. at 125.

We VACATE the district court's order of dismissal and DISMISS for lack of jurisdiction.

FLETCHER, Circuit Judge, dissenting:

I respectfully dissent. The majority finds that the district court lacked jurisdiction to hear this case because Karthauser did not allow six months to pass from the time he filed his administrative claim until he brought his suit in district court, as required by 28 U.S.C. § 2675(a). The requirements of that section are jurisdictional. United States v. Caton, 495 F.2d 635, 638 (9th Cir. 1974). In this case, Karthauser filed his suit on January 6, 1982, two days short of six months from the date of filing his claim with the Public Health Services Hospital on July 8, 1981. Karthauser's haste, in my view, should not carry the serious consequences that the majority attach to it. The hospital did not act within six months and apparently has not acted yet on the administrative claim, and Karthauser has not received a notice of final denial on his claim. He therefore could have filed a supplemental complaint alleging facts that meet the jurisdictional requirement at any time after January 8, 1982, and could do so now if necessary.

The Supreme Court has indicated that where such a supplemental filing is possible, and there has been no prejudice to the government, it will not require the useless acts of dismissal and refiling. In Mathews v. Diaz, 426 U.S. 67 (1976), a plaintiff did not file an administrative claim, a jurisdictional requirement under 42 U.S.C. § 405(g), until after he had filed his complaint in the district court. The Supreme Court held that because the plaintiff could have filed a supplemental complaint at any time alleging the fact of filing and because the record disclosed, by affidavit and stipulations, that the jurisdictional requirement was met, the court had jurisdiction despite the failure to file a supplemental complaint. Id. at 75.

The government's consent to be sued under 42 U.S.C. § 405(g) "constitutes a limited waiver of sovereign immunity and must be strictly construed." Ro Ane v. Mathews, 476 F. Supp. 1089, 1093 (N.D. Cal. 1977), aff'd, 604 F.2d 37 (9th Cir. 1979). Since the Supreme Court was willing to find jurisdiction despite the limited waiver of Sec. 405(g), we likewise should find jurisdiction in this case. 28 U.S.C. § 2675(a) is a statute that constitutes a limited waiver of sovereign immunity just as does 42 U.S.C. § 405(g). The government agrees that more than six months have elapsed since Karthauser filed his claim; thus it was not deprived of time to consider the claim, and no policy behind the statute was violated. In similar cases, two other circuits have refused to require "duplicitous pleadings and wasted effort." See Kubrick v. United States, 581 F.2d 1092, 1098 (3rd Cir. 1978), rev'd on other grounds, 444 U.S. 111 (1979); Celestine v. Veterans Admin. Hospital, 746 F.2d 1360, 1362-63 (8th Cir. 1984).

Because I would not require Karthauser to perform the empty formality of refiling, I would decide now whether Karthauser timely filed his administrative claim and is entitled to a trial on the merits. The issue is when Karthauser discovered the injury, since that date triggers the running of the two-year period for filing administrative claim.

FACTS

Karthauser claims that doctors at the United States Public Health Services Hospital negligently failed to diagnose and treat his disc space infection, and failed to provide proper postoperative care. The injury that Karthauser alleges is not the infection, itself, but a more serious condition that developed as a result of the infection--lumbar canal stenosis, which is a narrowing of the spinal canal in the lumbar region. Karthauser alleges that the stenosis would not have developed if the infection had been detected promptly and treated.

The case was assigned to a magistrate, who recommended to the district court that it conclude as a matter of law that Karthauser had failed to file an administrative claim within two years of the discovery of his injury, as required by the Federal Tort Claims Act, 28 U.S.C. § 2675(a). The magistrate found that by exercising due diligence, Karthauser could have been aware that the infection had resulted in lumbar canal stenosis prior to July of 1979, two years before his administrative claim was filed. In fact, although Karthauser's condition was constantly monitored following discovery of the disc space infection, the diagnosis of lumbar canal stenosis was not made until August, 1979. The magistrate presumably relied on his own recommended finding that, during a hospitalization in January of the same year, Karthauser "showed signs of scarring, bony changes and narrowing of the lumbar canal, all at the site of the infection." He also seems to have relied on later medical records that indicate a gradual ossification, or a filling-in of the disc space with bone growth. He apparently viewed the lumbar canal stenosis as the culmination of the ongoing process of ossification that took place as the disc space infection abated and healing progressed.

We should decide whether the magistrate erred in concluding that the plaintiff suffered from lumbar canal stenosis as early as January, 1979. If he was wrong, it affects the determination of timeliness of the filing of the administrative claim.

An examination of the medical records for Karthauser's hospital stay in January suggests the magistrate misread or misunderstood the scant information provided there. The report states only that " [t]he lumbar spine showed sclerotic bone changes" in the area of the surgery, and that " [t]here is evidence to indicate early bony repair and ankylosing formation."¹  From these statements, apparently, the magistrate concluded that narrowing of the lumbar canal had occurred by January. The magistrate appears to have interpreted subsequent reports of gradual ossification in the disc space, leading to an eventual "obliteration" of that space, as a progression of the condition of lumbar canal stenosis. The magistrate's identification of the ossification process in the disc space as the gradual development of lumbar canal stenosis is crucial to his conclusion that the stenosis should have been discovered before the actual diagnosis in August. I am convinced that this is contrary to the medical evidence in the record.

Stenosis is an "abnormal narrowing of a body passage, opening, canal or duct." 3 Schmidt's Attorney's Dictionary of Medicine S-170 (1986). As one of Karthauser's medical witnesses testified, lumbar canal stenosis is a narrowing of the lumbar portion of the spinal canal. The spinal canal is a cavity within the vertebral column: "Each segment or vertebra [in the spinal column] contains a hole near its center. Therefore, when these segments or vertebra are stacked, one on the top of the other, the holes form a continuous canal." 3 Schmidt's at S-141. The intervertebral discs separate the vertebra, and the disc space is the space between vertebra. 2 Schmidt's at I-92. The spinal canal and disc space, then, are different areas, and ossification in the disc space is not spinal canal stenosis. "Obliteration" of the disc space signifies the fusion of vertebra, part of the healing process following an infection of the disc space.

Comments in the medical record indicate that ossification is a welcome part of the healing process. On February 16, one doctor, after speaking with another doctor who had viewed Karthauser's x-rays, noted: "I am told that some new bone has been laid down and the healing process is well underway." The magistrate in his findings referred to an examination of Karthauser on April 2, as follows: "Dr. Sirounian concluded from the x-rays that the disc space was almost completely obliterated and that it was a direct result of the infection. Dr. Aversano concluded that the disc space infection was healing satisfactorily."²  Recommended Findings of Fact at 5.

The magistrate's assumption that ossification in the disc space and lumbar canal stenosis are merely different terms for the same condition is also inconsistent with testimony of the sudden discovery of possible stenosis in August by Karthauser's physicians. Other testimony revealed that the physicians were aware of the disc space ossification well before August. I would find that the magistrate's implicit determination that lumbar canal stenosis and disc space ossification are the same condition is clearly erroneous.

A cause of action in tort accrues when a plaintiff knows of the existence of his injury and its probable cause. United States v. Kubrick, 444 U.S. 111 (1979); Davis v. United States, 642 F.2d 328, 331 (9th Cir. 1981), cert. denied, 455 U.S. 919 (1982). In cases involving a failure to diagnose and treat, we have held that a cause of action accrues when a plaintiff becomes aware, or should have become aware, that a pre-existing problem has developed into a more serious condition. Raddatz v. United States, 750 F.2d 791, 796 (9th Cir. 1984); Augustine v. United States, 704 F.2d 1074, 1078 (9th Cir. 1983).

Karthauser does not assert that he was unaware prior to July 1979 that he suffered from a spinal infection. He does assert that he could not have known prior to August 1979 that the infection would develop into lumbar canal stenosis, the "injury" in this claim. The evidence supports his assertion. Once proper recognition is given to the distinction between ossification and stenosis, his claim is unassailable. There is no question but that Karthauser exercised due diligence in uncovering the nature of his injury. He complained of continuing back pain and was examined during the crucial period. There also was testimony of one of Karthauser's treating physicians that lumbar canal stenosis simply could not be anticipated in cases such as this and that the physicians did not detect the stenosis until August 1979. I would conclude that Karthauser could not have been aware of his injury prior to August 1979 and that accordingly his administrative claim was filed timely.

CONCLUSION

I would reverse the finding that Karthauser's administrative claim was not timely filed, and would remand for a trial on the merits.